Monday, March 2, 2009

I have been actively answering immigration questions on Avvo.com, and many of these questions relate to the Affidavit of Support requirement in many permanent residence applications. The Affidavit of Support and related regulations are complex and are therefore difficult for a lay person to understand. I understand the confusion that many people feel about the I-864, so I hope these FAQs help.

1. What is an Affidavit of Support and when do I need one?

The US government requires petitioners in family-based permanent residence cases to complete and file an Affidavit of Support on connection with the sponsored immigrant. If you are bringing a relative to live permanently in the United States, you must accept legal responsibility for financially supporting this family member. You accept this responsibility and become your relative's sponsor by completing and signing a document called an Affidavit of Support (Form I-864). This legally enforceable responsibility lasts until your relative becomes a U.S. citizen or can be credited with 40 quarters of work (usually 10 years), even if the relationship (e.g. marriage) ends before that time.

2. Do all immigrants need an Affidavit of Support?

No, the following immigrants do not need an I-864:

Self-petitioning widows or widowers or battered spouses and children (petitioning on a Form I-360).

Relatives who enter as refugees or asylees.

People who have worked for 40 qualifying quarters (as defined in Title II of the Social Security Act), or who can be credited with 40 qualifying quarters (e.g. through a family member).

Children who can automatically acquire citizenship through a parent.

3. What are the income requirements for an Affidavit of Support?

The sponsor must meet certain income requirements: you must show that your household income is equal to or higher than 125% of the US poverty level for your household size. The poverty guidelines change annually and are on this website. If the sponsor is on active duty in the Armed Forces of the United States, and the immigrant she is sponsoring is her spouse or child, the income only needs to equal 100 percent of the U.S. poverty level for the family size.

4. What is “household size?”

The household size includes the sponsor, your dependents, any relatives living with you, and the immigrants you are sponsoring. For example, if you have a spouse and two children and you want want to sponsor your brother and his wife, you must prove that your household income is equal to or higher than 125% of the US poverty level for a family of six. You must also include in your household size any immigrants you have previously sponsored under this part of the law (who are not yet naturalized citizens).

5. Who can be a sponsor?

If you filed an immigrant visa petition for your relative, you must be the sponsor. You must also be at least 18 years old and a U.S. citizen or a lawful permanent resident. You must be domiciled in the US. Usually, this means that you must actually live in the US, or a territory or possession, in order to be a sponsor. If you live abroad, you may still be eligible to be a sponsor if you can show that your residence abroad is temporary, so that you still have your domicile in the United States.

6. What if a sponsor can’t meet the in come requirements?

If you cannot show income of 125% of the poverty guidelines, you can opt for one of the following alternatives:

(a) Show that you have assets worth at least 5 times the difference between your income and the 125% of the poverty guidelines. For example, if 125% is $30,000, and your income is $20,000, you need to show assets worth $50,000, i.e. 5 x $10,000.

(b) Count the income and assets of members of your household who are at least 18 years old and are related to you by birth, marriage, or adoption. To use their income you must have listed them as dependents on your most recent Federal tax return or they must have lived with you for the last 6 months. They must also complete a Form I-864A, Contract between Sponsor and Household Member.

(c) Use the income and/or assets of the immigrants you are sponsoring, if you have listed them as dependents on your most recent Federal tax return or they have lived with you for the last 6 months. If the immigrant(s) meets these criteria, you may include the value of their income and assets, but the immigrant does not need to complete Form I-864A unless he or she has accompanying family members.

************I welcome all the comments to this posting. However, please do not ask questions about your particular case via the blog. I can only provide general information on this forum. If you want information specific to your situation, please contact an experienced immigration lawyer directly.

43 comments:

Hello this is Vanessa again and I am writting to let you know we got the NOA2 for the k3 visa and its been sent to NVC.My husband will start to prepare the financial support papers I134 but we will need a co sponsor and his mother is willing to help us with that ,Do you know which form should she fill out as co sponsor?Can you help me figure that?Have a good weekVanessa from Brazil

Hello, just a general question, once the immigrant is here and decided to move out from the sponsor's place, can the sponsor withdraw the affidavit of support filed since they will no longer be under his care?

Anonymous - the sponsors are still liable under the Affidavit of Support, even if they cannot afford the obligations. Whether the government could actually collect anything from the sponsors is a different matter.

I am a little confused about the affidavit of support. i'm married, my husband and i have one daughter. he makes 28000 a year and i'm a housewife. i want to bring my mom here but she also has 2 children who are under 18 yrs old. should my sisters be included in the number count or just my mom?

Shaneebay - You will need to file separate petitions for your sisters and file Affidavits of Support for them. You will have to show an income of 125% of the poverty guideline for 6 people: you, husband, child, mother, + 2 sisters.

i am a US citizen i already filed an I-130 petition for my parents (dad & mom) i already received the first notice of action (receipt). So how long will i have to wait to receive the second notice? what is usually the time frame for immediate relative petition considering that there is no wait time for visa in this category?

Do you happen to know how they handle the Affidavit with someone who is separating from military service? My husband and I filed the I-130 petition last November and explained to them that he is separating from the military in January and leaving to the States and that I'm supposed to follow him in October! The woman at the embassy told us "You do not need to worry about the I-864, just fill it out now and it will be fine. Your husband will be put on a paystop since he is separating from the military"

I e-mailed them again and now they are saying we need a new Affidavit from his current job or a co-sponsor. My husband does not reach 125% of the poverty guideline, and the only person available as a co-sponsor would be his mother who refuses to do so...I am sure they are correct, the first information we got at the embassy seemed strange to me anyway, but do you know where else I could find information on this?

The Affidavit of Support is not from an employer, it is from the US citizen sponsor. Your husband does need to show that he meets the income requirements, or find another joint sponsor. Your income can possibly be counted, if you are living together in the US. You may need a lawyer for a formal legal analysis of your situation.

I would like to know where I can find a lawyer or someone to help me to walk thru affidavit of support forms and analysis my situation if I am sufficiently qualified. (WITHOUT CHARGE PLEASE! HAHA!) Thanks for your time.

With regard to: "Eric - you cannot terminate your obligations if the permanent residence process is complete. This is why it is so important to know exactly what is involved in signing an Affidavit of Support."

Is the process "complete" when a conditional permanent residence is granted or only when the condition has been removed?

I had a quick question. My friends mother is making the affidavit of support for her and her husband. Her daughter is a US citizen of course, she just doesn't meet the guidelines so she needs a co-sponsor. Her daughter has three children also who are the dependents of her daughter. Are they included in the household size?

My friend doesn't meet the guidelines and is having her mother co-sponsor. Her Mom just has her and her husband in her household, plus her daughter and her husband who she is going to sponsor. That would put her household size at 4... but what about the three children of her daughter? Do they count as household size? They do not plan to live with her when they come home.

Can the US sponsor and the sponsoree create a separate, binding contract automatically terminating obligations under the affidavit of support should a triggering event occur? Ex. The sponsoree and sponsoror contract that the sponsoree will not sue the sponsoror for support, and all obligations to the sponsoree under the affidavit shall be terminated, should the sponsoree and sponsoror divorce, should the sponsoree commit infidelity, move out, materially breach the contract of marriage in any other manner, etc.?

Anon - the parties could probably sign a separate contract, but this is really a question of contract law, not immigration. Also, the main obligations are from the sponsor to the US government, not to the foreign national, and these could not be contracted out of.

Hello - thanks for all the useful info! I am the foreign applicant, I read somewhere that my income may be considered for the affidavit of support if I can prove that we've lived together for at least 6 months (I am on a H1b visa and have all of the appropriate tax returns), can you confirm?

Is there a way to withdraw a affidavit of support? I dont believe that it is not complete yet. After agreeing to do this for a friend the way they atsrted acting made me feel alittle uneasy with the situation. So I asked for her to return my paper work and not turn it in. But I am sure she did turn it in against my request. I now (just as I thought) cannot get whold of her. She willnot return calls or emails. Is there a way to know if she did in fact use my info against my request?

You can withdraw an Affidavit of Support if USCIS receives the withdrawal before making the final decision on the Adjustment application. In an Immigrant visa case, before a consular officer issues an Immigrant visa. The withdrawal must be in writing.

Hello, I helped a friend by filling out form I-184 now I would like to withdrawl it. Is there a way to do this? I have talked to USCIS, Department of State, and the Department of state visa office. They keep transfering me but no one has answered my questions.

hi! I'm no longger living with my husband for 5 yrs now, I am worried that it may affect my application to migrate to canada. I attached an affidavit that we ceased living together and have no communication since January of 2005, but without his signature because I don't know where to find him. Will it affect my application?

Anon - I can't answer specific questions on this blog. I also don't have enough information in your question. I don't know what your status is in the US, for example. Please contact an immigration lawyer directly.

I understand that you cannot terminate your obligations under the Affidavit of Support if the permanent residence process is "complete." Is the process "complete" when a conditional permanent residence is granted or only when the condition has been removed?

Hi, My question is what is the difference between an I-134 vs I-864 affidavit of support forms? I filed for an I-130, but I'm thinking of applying a K-3 Visa for my spouse who's in a foreign coun try right now. Is I-134 harder to fill out or are they just basically the same?

Also, do I need to show my paystubs, employment verification, bank statements, etc..for the I-864, or just the recent W-2 or tax return for 2009 will be sufficient enough as evidence for my affidavit of support for my spouse?

The I-134 and I-864 are used in different situations. The 864 has more onerous obligations on the sponsor. There is no choice as to which form to use - you must use the form that is required for the benefit you request. The most recent tax return should be enough for the 864, if it shows enough income.

I think you may have answered this type of Q already, but I just want to be sure. Can I withdrawal the affidavit of support when my husband has not recieved his AOS yet? He has a master hearing in a few weeks. We were approved at our stokes interview for the 1-130. I want a divorce due to particular circumstances where I believe he is being adulterous. I am the USCThank you

I am an American citizen married to an Italian man and we have been married for three years. We currently live in Italy. We would like to move to the US now...I would live there in the US and he would be traveling back and forth to the US over the next four years until he retires. At the time of his retirement he will receive a govenment pension for the rest of his life which is above the poverty guidelines. When I petition for him to come and live with me in the US, can his pension be used in full as the income needed on the support affadavit?Thank you.

We sponsored an Aunt and used form I-134. On our application, we said we'd be liable/responsible for 2 months. Why did they approve for her to stay here for 6 months? Second Q, after she returns...the application is over and done right? There's no piggy back or extension..like next year, she uses the same application to re-enter? We don't want to sponsor her anymore.

My husband's relative here in California is a US citizen, and they petitioned their 2 married children and their children in the Philippines. The immigration i believe said that they are not capable to support their chidren so they ask my husband if we can give an affidavit of support to help them. My question is, I'm going to send an affidavit of support to my mother too, will it affect my mom if we're going to give that support to his relatives too? what if my husbands relative will be jobless for two to five years and we no longer want to support them, what will happen? thanks